Mendelson: Private Control Over Access to Public Law: Federal Regulatory Use of Private Standards

Professor Nina A. Mendelson of University of Michigan Law School has posted Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards, forthcoming in Michigan Law Review.

Here is the abstract:

To save resources and build on private expertise, federal agencies have incorporated private standards into thousands of federal regulations – but only by “reference.” An individual who wishes to read this binding federal regulatory law cannot access it for free online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, the individual is referred to the private organization that prepared the standard, which typically asserts a copyright and charges a significant access fee. Or else she must travel to Washington, D.C. Thus, this category of law has come under largely private control.

In assessing the arguments why law needs to be public, previous analyses have focused almost wholly on whether regulated entities have notice of their obligations. This article evaluates several other considerations, including notice to those who expect to benefit from the way government regulates others, such as consumers of dangerous products, neighbors of natural gas pipelines, and Medicare beneficiaries. Ready public access also is critical to ensure that federal agencies are accountable to the courts, Congress, and the electorate for the regulatory power they exercise. As shown by an assessment of the institutional dynamics surrounding public and private interaction to define the scope of federal regulation, the need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm is likely to flow from government adopting regulatory law that is, in contrast to American law in general, more costly to access and harder to find. Full consideration of the importance of public access both strengthens the case for reform and limits the range of acceptable reform measures.

Strauss on Private Standards Organizations and Public Law

Professor Peter L. Strauss of Columbia Law School has posted Private Standards Organizations and Public Law, on SSRN.

Here is the abstract:

Simplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute, and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors OSHA requires for use in workplace caution signs, one must purchase from ANSI the standard OSHA has referenced in its regulations, at the price ANSI chooses to charge for it.

The regulations governing incorporation by reference as a federal matter have not been revised since 1982, and so do not address the changes the digital age has brought about in what it means for incorporated matter to be “reasonably available,” as 5 U.S.C. §552(a)(1) requires. This essay seeks to bridge that gap, suggesting a variety of approaches that might bring the use of incorporation by reference into conformity with modern rulemaking practices and respect the general proposition that documents stating citizens’ legal obligations are not subject to copyright, while at the same time both honoring clear federal statutory policy favoring the use of privately developed standards in rulemaking and respecting the needs standards organizations have to find reasonable means to support the costs of their operations. Business models created in the age of print need to change; the challenge is to find ways to permit the market in privately developed voluntary standards to thrive, without thereby permitting the monopoly pricing of access to governing law.

For background on this free-access-to-law issue, please see: Published Free on the Web: Full Text of 317 Proprietary Standards Incorporated by Reference in the U.S. Code of Federal Regulations.

Federal Register 2.0: Release of Unofficial Prototype

An updated online version of the Federal Register, called Federal Register 2.0 (FR 2.0), will be introduced on 15 July 2010, at an event at the Office of the Federal Register, in Washington, DC, according to a 12 July 2010 press release issued by the U.S. National Archives and Records Administration.

According to the press release, on 26 July 2010, FR 2.0 will be made available — “as an unofficial prototype” — to the public at FederalRegister.gov.

The press release states that the purpose of the public release is “to gather public feedback,” and that an official version of FR 2.0 could be made public sometime in 2011.

The press release provides the following additional background on FR 2.0:

The concept of FR 2.0 originated with Open Government advocates, and was later advanced by the White House Office of Science and Technology Policy. In technology terms, FR 2.0 uses the bulk XML from GPO’s Federal Digital System (FDsys) to present regulatory material in new configurations. The applications on the site are built from open source code, which will be returned to the open source community for unrestricted use in other applications. [...]

The FR 2.0 web site will be similar to a daily web newspaper, with a clear layout and new tools to guide readers to the most popular topics and relevant documents. The site will display individual news sections for Money, Environment, World, Science & Technology, Business & Industry, and Health & Public Welfare. FR 2.0 will have greatly improved navigation and search tools and will highlight each agency’s significant rules. The new web site takes advantage of social media and integrates seamlessly with Regulations.gov and the Unified Agenda to make it easy for users to submit comments directly into the official e-Rulemaking docket, and view the history of rulemaking activity through a regulatory timeline.

HT @AdvertisingLaw and beSpacific.

Regulations.gov: New Features

A number of new features have been added to regulations.gov, the U.S. federal eRulemaking service. Click here for a video describing the new features. The new features include:

• an “Exchange” tab, to link to the site’s online forum;
• agency specific RSS feeds;
• a bookmarking tool;
• a browse-by-topic index;
• a “Your Voice in Action” tab, featuring graphic displays about regulations and comments;
• a “What’s Hot” tab;
• new links to information about comment periods that are closing soon, newly posted items, and frequently used items;
• a search wizard;
• two new videos: one on searching, and one on submitting comments.

Note: As of 30 January 2010, the new features did not display in the Google Chrome browser. I notified the eRulemaking Program on 30 January 2010. [Update on 2 February 2010: The problem was with my browser; clearing the cache resolved the problem. Thanks to the Regulations.gov Help Desk for guiding me through.]

HT @ecarr42.

Arnaudo, Cognitive Law: An Introduction

Luca Arnaudo of the Italian Competition Authority and LUISS Guido Carli, has posted Cognitive Law: An Introduction on SSRN. Here is the abstract:

“Over the past decades cognitive neuroscience has achieved major results in better understanding the neural basis of human behavior. Economics has been the first social science interested and able in using some of these results for its own purposes, mainly because of the renewed interest towards psychology fostered by behavioral economics researches. Even with some delay, also law studies are now showing a growing interest towards these researches. The essay first reviews the major facts of this process, then supports new applications of cognitive neuroscience researches to law, together with the proposal of a new definition for such field of researches. Finally, the essay focuses on possible improvements of legal drafting and of the application of legislative and statutory provisions in the light of a better knowledge of reactions to said provisions under a cognitive-behavioral profile, also by means of practical experiments.”

HT Law & Neuroscience Blog.

CFR in XML Available for Bulk Download from GPO

[NOTE: Updated on 27 December 2009 to add the final four paragraphs.]

The U.S. Code of Federal Regulations (CFR) for 2007-2009 is now available for bulk download in XML from U.S. Government Printing Office (GPO) FDsys. Click here for the user guide.

Why is this of potential interest to the legal community? First, attorneys, legal IT personnel, and law librarians can download the CFR in XML and process it so that they, their colleagues, and the communities they serve can use it free of charge, without incurring the costs of using a for-fee online service. The XML markup enables the code to be output in a wide range of formats or integrated with a number of other information resources.

Second, many organizations that publish legal information for free on the Internet or at low cost — such as the Legal Information Institute at Cornell University and Princeton University’s Center for Information Technology Policy and its FedThread federal regulations publishing project — can download the CFR, process it, and make it available to the legal community and the public. This should result in greater competition in the market for legal information and ultimately lower costs for users of legal information.

This is the second major legal information access initiative at GPO this year. Earlier in 2009, GPO began making available the Federal Register for bulk download in XML.

These data access initiatives are consistent with such law-related Open Government Data activities as the U.S. Government’s Open Government Directive and the Law.gov project, which will be the subject of a number of public meetings throughout the U.S. in the first half of 2010.